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to the consignee of goods for a fall in price of the goods between the time at which they ought to have arrived and the time at which they actually did arrive. The facts, arguments, and judgment in the court below are fully reported, ante, p. 220.

66

Watkin Williams, Q.C. and Cohen, Q.C. (with them G. Bruce), for appellants. To enable the plaintiffs to recover they must show that the loss was sustained by the fall in the price of hemp was either a matter which at the time of making the contract the defendants knew, or that they had notice of some other contract contingent on the fulfilment of this one by a certain date. They are entitled to recover, as found by the registrar, the interest on the value of the cargo during the time they were kept out of possession of it, but nothing more; that represents the reasonable profit they might be expected to make, and which might be supposed to be in the contemplation of the parties when the contract was made: (Smeed v. Foord, 1 El. & El. 602.) There, although there were special circumstances which might possibly have led the defendant to contemplate à fall in the market price, it was held that a fall which actually did occur could not be recovered, and the rule laid down in Hadley v. Baxendale (9 Ex. 341) is approved. If the fall of the market was the actual consequence of the delay, as, for example, in the case of a cargo of ice to arrive in the summer season and delayed beyond, such a fall might, perhaps, be recovered; but it is not alleged that there is any regular fluctuation in the price of hemp. The time of arrival from a long voyage like this must be, in any case, a matter of uncertainty, and the margin of uncertainty was at least equal to the thirty-seven days' delay which actually took place. In Fletcher v. Tayleur (17 C. B. 21, 29), Willes, J. says: No matter what the amount of inconvenience sustained by the plaintiffs in the case of nonpayment of money, the measure of damages is the interest of the money only, and it might be a convenient rule if, as suggested by my Lord, the measure of damages in such a case as this was held by analogy to be the average profit made;" that is, the usual commercial rate of interest on the value of the hemp, which the Registrar allowed. In Cory v. Thames Ironworks and Ship Building Company (Limited) (L. Rep. 3 Q. B. 181; 17 L. T. Rep. N. S. 495), a sort of rough estimated rental value for the chattel, a ship of peculiar construction, was allowed, and not the actual loss sustained by the purchaser through the non-delivery of her; and in British Columbia Saw Mill Company v. Nettleship (L. Rep. 3 C. P. 499, 507; 18 L. T. Rep. N. S. 291, 604; 3 Mar. Law Cas. O. S. 65) it was held that special damages sustained by the non-delivery of a chattel could not be recovered. Bovill, C.J., says: "It is difficult to see the proper way of compensating the plaintiffs for the damage they have suffered except by applying the rule which obtains in the case of non-payment of money, viz., by allowing interest on the value of the goods." [MELLISH, L.J.-Has any case been found in which a loss of market, purely speculative, has been allowed ?] In Wilson v. Lancashire and Yorkshire Railway Company (9C. B., N. S., 632), the plaintiffs recovered for a fall in price where there was a delay in delivery; but that was a consignment of caps to a seaside place, and it must have been known by the defendants that the market for caps would cease

[CT. OF APP.

with the termination of the seaside season. In Re Trent and Humber Company, Ex parte Cam brian Steam Packet Company (L. Rep. 4 Ch. App. 112, 117; 19 L. T. Rep. N. S. 465; 3 Mar. Law Cas. O. S. 119) which was an action for delay in delivering a ship, Lord Cairns, L.C., said that, in estimating the damages, he had proceeded on the principle that "the measure of damages is, primâ facie, the sum which would have been earned in the ordinary course of the employ. ment of the chattel in the time." There is, moreover, a great distinction between the contracts of land and water carriage. When goods are sent by train, the object is manifestly to secure a punctual delivery by a certain date; but in a long voyage by sea, there is of necessity a great uncertainty in the date of arrival, and this is recognised by the American case, The Lively (1 Gall. 315, 327). Story, J. says: "Upon the whole, I am well satisfied that the profits, upon the supposition of a prosperous termination of the voyage, ought not in any case to constitute an item of damage." They also referred to

Sedgwick on Damages, 6th edit., 81, 430;

Massé Droit Commercial, 2nd edit., vol. 3, lib. 5,
tit. 1, Ch. 3, sect 4, § 1, p. 240;
Code Napoleon, Art. 1149, 115);

Ward v. New York Central Railroad Company, 45
N. Y. 29.

Clarkson (with him Butt, Q.C. and Davidson), for respondents.-The loss of market must be held to be in contemplation of the parties in this instance in case of delay. Why should the plaintiff select a steamer at a higher freight instead of a sailing ship, unless he wishes to insure dispatch and punctuality? He calculates that his goods arriving at a certain date, he will sell for a certain price, and if they do not arrive at that date he is entitled to recover for the loss sustained: (Sedgwick on Damages, 6th edit., p. 430.) The measure of damages for delay in delivery is always the difference in price between the time when the goods ought to be delivered and the time when they actually are delivered, and this is shown by the fact that where there is no fall of market the plaintiffs can recover nothing: (Great Western Railway Company v. Redmayne, L. Rep. 1 C. P. 329.) Collard v. South-Eastern Railway Com. pany (7 H. & N. 79; 4 L. T. Rep. N.S. 410), is directly in point, there the contract was to deliver tiffs might anticipate a sale at a certain price. by railway on a certain day, on which the plainHere the plaintiff employs a steamship with the view of having his goods delivered at and within a reasonable time, and at which time also, from his knowledge of the state of the market and trade reports of cargoes afloat, he could estimate the sale of his goods at a particular price, and by the breach of the contract of carriage by the defen. dants he has not been able to realise that price. This question is quite independent of that of interest; he is entitled to interest as well. He should be put in the same position as he would have been had the cargo been delivered at the proper time; that is, to have the money for which it would have sold at that time, and because he did not get it then, but has been kept out of it, and unable to use it profitably, he is entitled to interest on it whilst he is so deprived of it. They also referred to Horne v. Midland _Railway_Company, L. Rep. 8 C. P. 131; 28 L. T. Rep. N.S. 312; O'Hanlan v. Great Western Railway Company, 6 B. & S. 484; 12 L. T. Rep. N.S. 490;

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Berries v. Hutchinson, 18 C. B., N. S., 445; 11 L. T.
Rep. N.S. 771.

W. Williams, Q.C., in reply.—The plaintiff was neither shipper nor consignee. The action is founded on a bill of lading, and the property in the goods only passed to the plaintiff when the bill of lading was handed to him. He knew nothing about the ship or her date of arrival, he did not even know when she sailed. In addition

to the former authorities, Rice v. Baxendale (7 H. & N. 97) was cited. Cur. adv. vult.

March 27, 1877.—The judgment of the court was read by

Mellish, L.J.-This is an appeal from the Admiralty Division, which is brought by the assignee of some bills of lading, under the Admiralty Court Act, for the purpose of recovering damages against the shipowner for breach of contract of carriage contained in, I think, two bills of lading of certain quantities of sugar and certain quantities of hemp from Manilla to London. The breach alleged was, that the boilers of the Parana were in a bad condition,

and that by reason thereof a very undue delay took place during the voyage. The breach was admitted, and an inquiry was ordered before the registrar and merchants to assess the amount of damages, and they came to the conclusion that a delay of thirty-six days might be imputed to the shipowner, and that he was liable for the damage occasioned by that delay. They then proceeded to assess the damages, and gave a certain sum for the additional leakage of the sugar that had taken place in consequence of the length of the voyage; and also interest at 5 per cent. on the value of the hemp and sugar.

But the further question arose whether in addition the plaintiff was entitled to recover damages in respect of a fall in the price of the hemp, which he alleged had taken place between the time when the cargo ought to have arrived and the time when it did arrive; the registrar and merchants had to find what the total amount of damages would be, including the fall of price, if the plaintiff was entitled to it, and they came to the conclusion that damages for the fall of price ought not to be recovered, and reported accordingly. Their report was objected to before the Judge of the Admiralty Division, and he sustained the objection, and allowed the damages claimed for the fall in price. From that decision there is an appeal to us, and therefore the question we have to decide is, whether, if there is undue delay in the carriage of goods on a long voyage by sea, it follows as a matter of course that if there has been a fall in the price of these goods between the time when they ought to have arrived and the time when they do arrive, damages can be recovered.

Now there really is no difficulty as to the general principles upon which the courts assess damages. They are accurately stated in two or three places in the judgment of Sir Robert Phillimore, as where he cites the last case on the subject, Simpson v. London and North-Western Railway Company (L. Rep. 1 Q. B. 274; 33 L. T. Rep. N. S. 805): "The principle is now settled that, whenever either the object of the sender is specially brought to the notice of the carrier, or circumstances are known to the carrier VOL. III., N. S.

[CT. OF APP.

from which the object ought in reason to be inferred, so that the object may be taken to have been within the contemplation of both parties, damages may be recovered for the natural consequences of the failure of that object." He also cites the judgment of the Lord Chief Baron in Horne v. Midland Railway Company (L. Rep. 8 C. P. 131, 137; 28 L. T. Rep. N. S. 312): " Damages for a breach of contract must be such as may fairly and reasonably be considered as arising naturally-i.e., according to the usual course of things-from such breach of contract itself, or such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it." The difficulty, of course, arises in the application of those principles.

We took time to consider our judgment, because a great many authorities were cited, both in the court below and before us; but the result of them is, that there is no decision which can at all be said to be directly in point. There is no case, I believe, in which it has ever been held that damages can be recovered for delay in the carriage of goods on a long voyage by sea, where there has been what may be called a merely accidental fall in price between the time when the goods ought to have arrived and the time when they did arrive-no case that I can discover where such damages have been recovered; and the question is, whether we ought to hold that they ought to be recovered? If goods are sent by a railway for sale at that day's market in Smithfield or Billingsgate, and by reason of a breach of contract on the part of the carrier they have not arrived in time for that market, no doubt damages for the loss of market may be recovered. So, again, if goods are sent for the purpose of being sold at a higher price than they are at other times, and if by reason of breach of contract they do not arrive in time, damages for loss of market may be recovered; or if the facts are known to both parties; or where it is known à priori that they will sell at a better price than if they arrived later. But there is no evidence in this case of anything of that kind, as far as I can discover from the facts; it is only said, when they arrived in November they were likely to sell for less than if they had arrived in October, that the market was lower. But besides the case of consignments of goods to be sold at a particular market, cases were cited, and it was upon them the court below proceeded, of the carriage of goods by a railway, where damages for loss sustained on account of the fall in price of the goods have been recovered, and it was said there could be no difference between the carriage of goods by railway and the carriage of goods by sea. But it appears to us that there may be a material difference between the two cases; when goods are conveyed by railway, if they are known to be conveyed for the purpose of sale at all, they are usually conveyed for the purpose of immediate sale, and if the cases are examined, I think it will be found that in all of them the courts treated the question as if the goods were consigned for the purpose of immediate sale. No doubt, if goods are consigned to a railway company under such circumstances, the railway company may be reasonably supposed to know that they are consigned for the purpose of immediate sale; and, if by breach of contract on the part of the carrier, 2 D

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they do not arrive in time to be sold when the owner intends them to be sold, that may be a ground for giving damages for what is called loss of market." The strongest case in favour of the opinion of the court below is that about the hops: (Collard v. S. E. Ry. Co., 7 H. & N. 79; 4 L. T. Rep. N. S. 710.) The goods in that case were actually consigned to a hop merchant in the Borough, I think, to fulfil a particular contract. The damages arising from the non-fulfilment of that particular contract could not be recovered, because the railway company would know nothing about it; but the judge came to the conclusion, I think, that it might be treated as if the goods were being consigned for the purpose of immediate sale; there were, apparently, violent fluctuations going on in the hop market at that time, and that it might be taken that the owner had selected his own time for selling his hops, when he thought the price was at its best, and by reason of a breach of contract on the part of the railway company, which consisted, it is to be observed, not in delay in delivering the hops, but in actual damage to the hops, the hops were damaged and had to be dried, and that it might be considered there was a loss of market. The words used in the judgment (Collard v. SouthEastern Railway Company, 7 H. & N. 86) are: It is said the defendants had no notice of the purpose for which the hops were sent to London; but I think they must have known they were sent for one of two purposes, either for consumption by the person to whom they were sent, or, as was more likely to be the case, to be sold for profit. It seems to me that Hadley v. Baxendale (9 Ex. 343) has no bearing in this case, and I think that Smeed v. Ford (1 El. & El. 602) is correctly decided. In my judgment the plaintiff is entitled to recover for this damage, because it is a direct and immediate loss consequent on the defendants' breach of duty." Then it proceeded, "If this case should be taken to the court of error"-showing a doubt about the principle it was laying down-"I hope that the court will be able to put the rule on an intelligible footing; but at present we must do the best we can with each particular case, and decide it upon principles of reason and good sense." The other case on which the learned judg⚫ of the court below more particularly relied was an American one (Ward v. New York Central Railway Company, 47 N. Y. 79), which appears to have been a consignment of some pigs, and damages were allowed to be recovered for loss of market. The precise circumstances it is not very easy to gather, but I should certainly conjecture that they were pigs sent for the purpose of being sold at

once.

The difference between cases of that kind and cases of the import of goods from a long distance by sea seems to me to be very obvious. In order that damages may be recovered we must come, I think, to the conclusion, first, that it was reasonably certain that the goods would not be sold until they arrived; or, secondly, that it was reasonably certain that they would be sold immediately after they arrived, and that that was known to the carrier when the bills of lading were signed. It appears to me that nothing could be more uncertain than either of those two assumptions. Goods imported by sea may be, and are, every day sold whilst they are at sea. If the man who is importing the goods finds the market high,

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[CT. of App.

and is afraid that the price may fall, he is not prevented, as an ordinary rule, from selling his goods because they are at sea. The sale of goods "to arrive on transfer of bills of lading, with costs, bills, and insurances, is a common mercantile contract made every day. It may be that from not having samples of the goods, or from not knowing what particular quality his goods are, he may have a difficulty in selling them before arrival, but the carrier would not necessarily know that.

The plaintiff in this case is not himself the original consignee, but a man who had acquired the goods, apparently by the consignment of the bill of lading, whilst the goods were at sea. We were told that he was a person that advanced money on the security of the bills of lading. That possibly may be the case; but whether he has done that, or is the purchaser, would make no difference. It was said that, if the goods were sold, the person who sells them does not suffer the damage, but that the purchaser would. But this is pure speculation. If a man purchases goods while they are at sea, no person can say for what purpose he purchases them. He may purchase them because he thinks if he keeps them for six months they will sell for a better sum; or he may want to use them in his trade. It is pure speculation to enter into the question for what purpose he purchases them. In this particular case the plaintiff did not sell the goods as they arrived; he sold them some months afterwards, when a further fall had ta en place in the market. Of course, he does not seek to recover from the defendant that additional loss, but it serves to illustrate how uncertain it is whether he would have sold them had they arrived in proper time, if he did not sell them when they did arrive, but kept them because he thought the market would rise. How can we tell he would not have done exactly the same thing if the goods had arrived in time ?

Therefore, it seems to me that to give these damages would be to give speculative damages -to give damages when we cannot be certain that the plaintiff would not just as much have suffered if the goods had arrived in time; and I think, according to the principles on which the courts have acted in all speculative and uncertain cases of this kind, that damages ought not to be recovered. Therefore, upon the whole, we come to the conclusion that the report of the registrar and merchants-which, besides quoting the common law authorities, says that though it constantly happened, of course, that by collision goods were delayed in their arrival, yet it never had been the custom in the Court of Admiralty to include in damages the loss of market-was right.

The consequence therefore must be, that the judgment of the court below must be reversed. As to costs, the registrar and merchants reported that each party ought to pay his own costs of the inquiry before them, and we think that ought also to be retained, and the appellant should have his costs of the arguments in the court below.

JAMES, L.J.-I am of the same opinion. The very expression "loss of a market " is a striking illustration of the principle laid down. BAGGALLAY, L.J. concurred.

Appeal allowed.

Solicitors for appellants, Parker and Clarke. Solicitors for respondents, Stibbard and Cronshey.

CT. OF APP.]

FRENCH AND ANOTHER v. Gerber and OTHERS.

SITTINGS AT WESTMINSTER. Reported by P. B. HUTCHINS, Esq., Barrister-at-Law.

Tuesday, Feb. 6, 1877.

(Before MELLISH, L.J., and BAGGALLAY and BRAMWELL, JJ.A.).

FRENCH AND ANOTHER v. GERBER AND OTHERS. Charter-party-Clauses as to cesser of charterer's

liability.

Defendants chartered plaintiff's ship to carry a cargo from Akyab. By the charter-party the ship was to call at Queenstown or Falmouth for orders, which were to be forwarded within forty-eight hours after notice to defendants' agents of her arrival, or lay-days to count, and to discharge at a good and safe port.

The charter-party contained this clause: "The liability of the charterers shall cease as soon as the cargo is on board, provided the same is worth the freight at port of discharge, but the owners of the ship to have an absolute lien on the cargo for all freight, dead freight, and demurrage which they shall be bound to exercise." Defendants sold the cargo before the ship's arrival. Plaintiffs sued on the charter-party for not giving orders as to port of discharge, and for giving orders to proceed to an unsafe port.

Held (affirming the judgment of the Common Pleas Division), that the above clause exempted defendants from all liability, irrespective of plaintiffs' lien.

APPEAL from the judgment of the Common Pleas Division on demurrer in an action by shipowners against charterers.

The declaration alleged that the plaintiffs by the master of the Theresa and the defendants by Burot, Gerber, and Co., their agents at Akyab, entered into a charter-party, of which the following are the material parts: "It is this day mutually agreed between Mr. R. C. Downie, in command of the good ship or vessel called the Theresa ..

now

off Akyab, and Messrs. Burot, Gerber, and Co., of Akyab, merchants and freighters, that the said ship... shall with all convenient speed sail and proceed to a loading berth in the port of Akyab or so near thereunto as she may safely get always afloat and there . . . load from the agents of the freighters who may direct the ship to the most convenient safe anchorage a full and complete cargo of rice in bags as usual, . . and being so loaded shall therewith proceed with all dispatch to Queenstown or Falmouth (at the option of the master) for orders, to be forwarded within forty-eight hours after notice of the said arrival, or lay-days to count, to discharge at a good and safe port in the United Kingdom, or on the Continent between Bordeaux and Hamburgh, both inclusive, or so near thereunto as she may safely get, and deliver the same in any dock freighters may appoint always afloat, agreeably to bills of lading on being paid freight in full of all port charges, pilotage, and primage, at and after the rate of 608. per ton of 20 cwt. net delivered, the act of God, &c. .. always excepted. The freight to be paid on right delivery of the cargo.

....

.. Twelve working laying days (Sundays excepted) are to be allowed the freighters for loading the said ship at port of loading, and waiting for orders at port of call in Europe, to commence and to be computed twenty-four hours after the master has given notice in writing to charterers' agents that

|

[CT. OF APP.

the ship is ready to receive cargo, and fifteen days on demurrage are allowed over and above the said laying days at 4d. per register ton per day. The homeward cargo to be received when the vessel is at her port of discharge with all possible dispatch, and according to the custom of the port. All goods to be brought to and taken from alongside at the expense and risk of the freighters. The captain to sign bills of lading for his cargo at no lower rate of freight than stipulated in this charter-party; failing which charterers shall not be responsible for such difference. The vessel to be consigned at ports of loading and discharge to charterer's agents free of commission under this charter-party. All questions of general average to be settled according to the custom of the London underwriters at Lloyd's. Freighters to have the power of underletting the whole or part of the vessel. Freighters to have the option of cancelling this charter-party if the vessel be not arrived at port of loading, and be ready to take in cargo, at or before noon of the 15th April next ensuing, retaining consignment; such option to be availed of within twenty-four hours after ship's arrival. It is further agreed that the liability of the charterers shall cease as soon as the cargo is on board, provided the same is worth the freight at port of discharge, but the owners of the ship to have an absolute lien on the cargo for all freight, dead freight, and demurrage, which they shall be bound to exercise, sufficient cash for ship's ordinary disbursements to be advanced the master by freighter's agents at port of loading, at the current rate of exchange, to the extent of 600l., for the due appropriation of which freighters shall not be responsible; such advance to be on account of chartered freight, and to be indorsed on bills of lading, including cost of assurance and 2 per cent. commission, and deducted from freight on settlement thereof. Penalty for non-performance of this agreement, estimated amount of chartered freight.”

....

....

The declaration went on to allege that the Theresa was loaded with a cargo of rice and sailed to Falmouth, and on her arrival there due notice of her arrival was given to and received by the defendants and their agents, and all conditions were fulfilled, &c., to entitle the plaintiffs to have orders for the Theresa to proceed to a port of discharge given by the defendants or their agents in accordance with the terms of the charter-party, yet the defendants or their agents did not give, and refused to give, any orders as to the Theresa's port of discharge in accordance with the terms of the charter-party, whereby the plaintiffs were delayed, prevented, and hindered from earning the freight on the Theresa's cargo payable under the charter-party, and incurred divers expenses in and about the unloading of the said cargo, and in endeavouring to obtain and in obtaining payment of the said freight.

In the second count it was alleged that the defendants or their agents did not give orders for the Theresa's nort of discharge in accordance with the terms of the charter-party, and gave orders that the Theresa should proceed to and discharge at a port which was not a good and safe port within the meaning of the said charter-party, and where and as near whereunto she could not deliver the said cargo, always afloat, or in any dock always afloat, according to the terms of the said charter-party (same special damage as in the first count).

CT. OF APP.]

FRENCH AND ANOTHER v. GERBER AND OTHERS.

Fifth plea, that the charter-party was made subject to the condition therein contained, that the liability of the defendants should cease as soon as the cargo was on board, provided the same was worth the freight at port of discharge, but the owners of the ship to have an absolute lien on the cargo for all freight, dead freight, and demurrage which they should be bound to exercise; that the cargo was shipped on board the said vessel, and before the arrival of the same was sold by the defendants, that the same was worth the freight at the port of discharge, and that by reason of the premises the defendants' liability upon and under the charter-party ceased.

The sixth plea was similar to the fifth, with the additional allegation that the alleged breaches were caused by the acts of the buyers of the cargo and not by the acts of the defendants,

Demurrer to the fifth and sixth pleas on the ground that the facts stated did not affect the defendants' liability under the charter-party.

Feb. 17, 1876.-The demurrers came on for argument in the Common Pleas Division.

French for the plaintiff.

W. Williams, Q.C. (J. C. Matthew with him) for the defendants.

The arguments were the same as in the Court of Appeal. Cur. adv. vult.

June 14, 1876.-The judgment of that court (Brett, Archibald, and Lindley, JJ.) was delivered by

BRETT, J.-In this case the judgment of the court is to be given upon a record on which there are demurrers to two pleas, the fifth and sixth. We cannot doubt that, if the declaration is good, the pleas are bad. If the stipulation in the charter-party does not of itself upon the loading of the cargo absolve the defendants in respect of the breaches relied on in the declaration, the other facts set forth in the pleas respectively cannot absolve them. The defendants are bound by the contract unless they are absolved by the contract. The real question, therefore, in this case is whether the delaration is sufficient.

The material points to be noticed seem to be, that the defendants must be assumed to be the real freighters, that there is an implied contract by them that orders shall be forwarded to Queenstown or Falmouth, that time for the waiting of the ship for such orders is expressly allowed in the lay days, and that beyond the lay days, which include such waiting and the period of loading at the port of loading, fifteen days or demurrage are allowed at 4d. per register ton per day. The homeward cargo is to be received when the vessel is at her place of discharge with all possible dispatch, and according to the custom of the port.

The breach in the first count is, for not giving any orders as to the port of discharge, whereby and in consequence whereof the plaintiffs were delayed, prevented, and hindered from earning the freight on the cargo payable under the charterparty, and incurred divers expenses in and about the unloading of the said cargo, and in endeavouring to obtain, and in obtaining payment of the said freight. The breach in the second count is, that the orders given were not in accordance with the terms of the charter-party, but were orders that the Theresa should proceed to and discharge at a port which was not a good and safe port within the meaning of the said charter-party, whereby, &c. (the same consequences as in the first count).

[CT. OF APP.

The real grievance then complained of is, not that the plaintiffs did not earn the freight, but that they were delayed and put to expense in earning it by reason of two alleged breaches of the charter-party occurring at Falmouth. Even though the mere delay of the ship by not giving orders at Falmouth might be treated as subject to the demurrage rate, and, therefore, in such a charter-party as the present subject to the lien for demurrage, as suggested by some of the judges in Kish v. Cory (2 Asp. Mar. Law Cas. 593), yet the other damages sued for cannot, we think, be brought within such a rule. A part of the damages sued for are obviously unascertained or unliquidated damages. For such part there is no lien, such part is not the freight, dead freight, or demurrage, for which a lien is given in this charter-party.

The question, therefore, is, whether in the case of a charterer who is himself the real principal, the clause under discussion absolves from breaches occurring after the loading of the ship in respect of which no remedy is given against the consignees; or, in other words, whether, upon such a charter-party, the shipowner must be held to have agreed to make no claim for damages for omissions occurring after the loading of the vessel, which, but for the clause, would give him a right to damages? If the latter be the true construction, the result is that upon such charter-parties as the present, the shipowner, in order to secure freight as on a full cargo, and compensation for delay, strictly to be called demurrage delay, and perhaps for further delay, giving damages in the nature of demurrage delay occurring before or during the loading of his ship, undertakes the risk of all defaults of the charterer or his agents happening after the ship is loaded.

So far as the damages which are claimed are covered by the lien, we think there can be no doubt that the charterers are absolved. The question is as to the part of the damages which is not so Covered. The rule must be deduced from, or, at all events, cannot properly be declared without considering the decided cases. The question has always been whether the liability sued for was of those which was to cease as soon as the cargo was on board: see Oglesby v. Yglesias (27 L. J. 366, Q. B.); and in Milvain v. Perez (3 L. T. Rep. N.S. 736; 3 L. J. 90, Q. B.), the liability sued for occurred before or during the loading, but the clause was in terms applicable to “all matters and things as well before as after the shipping of the said cargo." It was, therefore, held that the charterers were by express terms absolved upon the loading in respect of all liabilities, whether they occurred before or after the loading, and this without reference to whether the liability was or was not transferred to the consignees by the medium of a right of lien given to the shipowner, for, in the first case, the claim was for demurrage, but in the second was for damages for not loading in regular turn or in a reasonable time.

In Bannister v. Breslauer (L. Rep. 2 C. P. 497; 2 Mar. Law Cas. O. S. 490) the claim was for not loading with all dispatch or within a reasonable time. The clause was: "The charterer's liability to cease when the cargo is shipped, provided the same is worth the freight, on arrival at the port of discharge, the captain having an absolute lien on it for freight, dead freight, and demurrage, &c The defendants were not said to be agents. The

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